Immigration and firm news

Beware of Misrepresentation! DOS Updates its Guidelines

The Trump Administration is cracking down on fraud and misrepresentation. The US Department of State (DOS) has updated its guidelines or policy in the Foreign Affairs Manual (FAM) concerning what activities are inconsistent with visa status that could give rise to a finding of fraud or misrepresentation in light of when those activities occur. Previously, the DOS used the “30/60/90-day rule.” This rule said that there would be a presumption of fraud or misrepresentation if a person entered the US with one kind of visa and then engaged in inconsistent activities or applied to change status within the first 30 days. An example would be using a tourist visa or visa waiver and working unlawfully, marrying a US citizen or filing for adjustment of status to permanent resident. The 60 day period following admission was a gray area that could go either way, and if the new activity occurred later than 90 days after entry, most likely there would not be a finding of fraud or misrepresentation, but it would depend upon the facts. The new rule does away with the 30 and 60 day period and makes any inconsistent activity within the first 90 days to give rise to a presumption of fraud or misrepresentation.

What is fraud and what is misrepresentation?

According to the FAM:

Congress uses the terms “fraud” and “willfully misrepresenting a material fact” in the alternative. The Board of Immigration Appeals has determined that a finding of “fraud” requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer. Further, the representation must have been believed and acted upon by the officer. (See Matter of G, 7 I & N 161, 1956.)

[Materiality presents the question of whether the officer would have made a different decision had the true fact been known. ]

“Material misrepresentation” includes simply a willful misrepresentation, which is relevant to the alien’s visa entitlement. It is not necessary that an “intent to deceive” be established by proof, or that the officer believes and acts upon the false representation. (See Matter of S and B-C, 9 I & N 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I & N 288 (1975))….Most cases of inadmissibility…involve “material misrepresentations” rather than “fraud” since actual proof of an [applicant’s] intent to deceive may be hard to come by.

What is the 90-day presumption rule in the updated FAM?

It says the following and more:

Inconsistent Conduct Within 90 Days of Entry:

(a) …if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an [Advisory Opinion (AO) from the Visa Office]. As with other grounds that do not require a formal AO, the AO may be informal.

(b) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

(i) Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

(3) After 90 Days: If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from the Visa Office.

For there to be a finding of fraud or misrepresentation, there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend a stay in nonimmigrant status), the applicant stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was consistent with the intended nonimmigrant classification.

What does this mean practically speaking?

Besides, “don’t lie!,” your written AND oral statements in an application, to a visa officer or to a border officer will be considered later when you seek another benefit. As you may have experienced already, the DS160 form for nonimmigrant visas is very, very long; so is the ESTA form to be able to use the visa waiver program; increasingly extension of stay, petitions and adjustment of status applications are also very long, and every form asks if you ever made a prior misrepresentation or gave a false fact or testimony. Consequently, we suggest that every applicant for every benefit keep a copy of your applications in case you need to consult with counsel, and also because you can anticipate that down the road when you file for another visa, or later for a green card, or even later for naturalization, that the authorities are going to pull all your prior applications and look for inconsistencies and false statements.

The penalties for fraud or misrepresentation are significant. They include: visa denial, green card denial, naturalization denial, expedited removal at a port of entry, deportation or removal from the USA. In some cases, waivers are available for nonimmigrant visa, but for immigrant visas and green card holders, one will need a “qualifying relative” AND demonstration that not getting the green card will result in an “extreme hardship” to that qualifying relative.

Now, keep in mind that the FAM is a policy or guidance document that is followed by the US State Department. It is not a statute, nor a regulation. The Congress has not changed the misrepresentation/fraud ground of inadmissibility which states:

Immigration and Nationality Act (INA) Section 212(a)(6)(C)(i):

C) Misrepresentation.-

(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Therefore, the DOS FAM document is an interpretation of this statute. We know it will be used by visa officers at consulates and embassies abroad. It will probably be used by Customs and Border Protection officers at ports of entry. What is unclear is whether it will be used by USCIS, the US benefits agency that handles extensions of stay, changes of status and applications for green cards (permanent residence) and naturalization (US citizenship). USCIS policy on misrepresentation can be found here, but there is a caveat in the policy:

The U.S Department of State’s 30/60 Day Rule

The U.S. Department of State (DOS) has developed a 30/60-day rule to assist consular officers in evaluating misrepresentation in cases involving a person who was in the United States and whose conduct is or was inconsistent with representations made to the consular officer concerning his or her intentions at the time of the visa application. [8]

An officer should keep in mind that the 30/60 day rule is not a “rule” in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation. Officers must not use Foreign Affairs Manual (FAM) guidance in a denial.

The USCIS policy, while it does not follow the old DOS FAM 30/60/90 day rule, it hasn’t been updated yet to be consistent with the new DOS FAM 90-day rule. And USCIS may or may not update its policy. Stay tuned.

What is the bottom line?

Don’t lie in your applications or before a visa, border or immigration officer!

Keep copies of all of your applications in case you need to consult counsel or need to remember what you represented years ago.

Conduct your US activities consistent with your visa category.

Be careful and be prepared!

In this day in age of Do-it-Yourself (DIY) and online immigration bots, you can bet that inexperienced applicants or algorithms will not pick up on the subtle nuances of visa and immigration officer interpretations of misrepresentation that vary widely. Every case will turn on its individual facts. We expect to counsel more people to consular process their family based cases, but that will depend upon a review of every case on its facts and the applicant’s behaviors, history and prior representations, not to mention analyzing priorities for work and travel among other issues. There is no way to generalize or have cookie cutter procedures for people without a complete analysis.

The Seattle based Law Office of Bonnie Stern Wasser offers immigration and citizenship law services with emphasis on business and family immigration. Services include preparation and filing of applications for work and family visas, green cards, waivers, naturalization and citizenship, and other specialty immigration programs. We also provide assistance with border and consular matters, workplace compliance (e.g., I-9 and E-Verify), abandonment and preservation of residence, military related immigration and citizenship, DACA, and prosecutorial discretion matters.